Bloomberg Law
April 19, 2021, 1:35 PM

Right to Confront Witness at Heart of Case Supreme Court to Hear

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

The U.S. Supreme Court agreed on Monday to consider whether criminal defendants waive the constitutional right to confront witnesses when they “open up the door” to certain evidence—an issue that has deeply divided the federal courts of appeal.

The Confrontation Clause prohibits prosecutors from introducing “testimonial evidence,” statements made under oath, unless witnesses take the stand at trial, giving defendants the opportunity to confront their accusers.

According to the petitioner’s brief, the circuits are split 3-5-3 on whether that prohibition can be forfeited by defendants when their testimony elicits a response that would otherwise be barred by the Sixth Amendment guarantee.

Some say defendants never forfeit the right, some say defendants always do when they introduce evidence about a specific witness, and still others say the right is waived only when defendants introduce misleading evidence.

In this case, defendant Darrell Hemphill introduced evidence that the man originally charged, but not convicted, was the one who actually killed a 2-year-old bystander during a 2006 street fight in the Bronx.

The state countered with statements the original defendant made during his plea.

New York state courts found that evidence was allowed, even though the original defendant didn’t take the stand at Hemphill’s trial, because he forfeited any Confrontation Clause objection.

Hemphill was convicted of second-degree murder and sentenced to 25 years to life.

The case is Hemphill v. New York, U.S., No. 20-637.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at